Supreme Court Revisits the Tribunal Culture (yet again); Upholds the Validity of the 2020 Rules, but with Conditions.

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Adding to an existing trail of decisions on administration of the tribunals, the Supreme Court on 27/11/2020 passed a detailed judgement in Madras High Court Bar Association v. Union of India, wherein it upheld the constitutional validity of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 (or Tribunal Rules 2020). Among other things, the decision is crucial for its observation on appointment of the Chairpersons, Vice-Chairperson and Technical Members to different judicial tribunals. The present post shall reflect on the key aspects of the judgement and shall discuss its implication on the appointment of the IPAB Chairperson subsequent to the tenure of the incumbent Chairperson Retd. Justice Manmohan Singh, who is set to re-retire on 31/12/2020.  

Background and the Decision 

On 13/11/2019, the Supreme Court deemed the Tribunal Rules 2017 unconstitutional, in Rojer Mathew v. South  Indian Bank Limited. Consequently, the government passed the Tribunal Rules, 2020 on 12/02/2020. These rules deal with qualifications, appointment of members to the judicial tribunals by recruitment, procedure for inquiry into misbehavior and other conditions of services. The petitioner, Madras High Court Bar Association, in the Writ Petition (Civil) no. 804 of 2020 (taken as the lead case by the court) challenged the constitutional validity of the Tribunal Rules, 2020 for being ultra vires under Article 14, 21 and 50. One of the main arguments of the petitioner was that the Tribunal Rules 2020 were the replication of the previous Tribunal Rules 2017. The court agreed with the petitioner but still upheld the validity of the 2020 rules after being assured by the Attorney General that appropriate amendments will be carried in the 2020 rules. The court relied on its previous decisions like L Chandra Kumar, Madras Bar Association v. Union of India (2014), Union of India v. R. Gandhi, Sampath Kumar v. Union of India among others and held that:- 

  1. A National Tribunals Commission must be established to supervise the appointment and functioning of judicial tribunals. This commission must also fulfill the necessary infrastructural, financial and other needs of the tribunals. 
  2. Re-constitute the 4 members Search-cum-Selection Committee, under the Tribunal Rules 2020, to a 5 members committee for appointment of members to the tribunals. The court directed that the Secretary to the Ministry of Law and Justice, Government of India be added to the committee as a member, and that the Secretary of the parent ministry remain as a member, but without a vote.
  3. Amend Rule 4 (2) of the Tribunal Rules, 2020 to provide for the Search-cum-Selection Committee to recommend only one name for the appointment to each post instead of a panel of two or three names.
  4. The Central Government shall make appointments to the Tribunals within three months from the date on which the Search-cum-Selection Committee makes the recommendation.
  5. Directed to increase the term of the office of the Chairperson to five years or till they attain the age of seventy, whichever is earlier. And the term of office of the vice chairperson to five years or till they attain the age of sixty seven, whichever is earlier.
  6. Directed the Tribunal Rules, 2020 to have prospective effect and be applicable from 12/02/2020. Therefore, any appointment to the post after the above date shall be in accordance with the Tribunal Rules, 2020.
  7. The court suggested via an obiter that “it’s crucial that tribunals are run by a robust mix of experts, i.e. those with experience in policy in the relevant field, and those with judicial or legal experience.”

For a detailed summary of the decision see the livelaw coverage of the judgement here and here.

Implications of the decision on the IPAB

The writ petition filed by International Association for the Protection of Intellectual Property (AIPPI) (W.P. (civil) No. 1431/2019) were among the other petitions which were clubbed in the present case. Readers may recall that it was by virtue of this petition,  the term of the serving Chairperson of the IPAB was extended beyond his age of superannuation not once but twice (See here and here). With the petition now disposed of and a fresh pair of directions issued regarding appointment to the tribunals, one may wonder what shall be the implication of this decision on appointments to the IPAB?

A shot at separation of powers, yet again

The judgement addressed the flaws in the appointment procedure from the perspective of the principle of separation of powers. The Court noted that impingement by the executive in appointments for tribunals isn’t a recent finding. Specifically speaking about the IPAB, way back in 2011, Retd. Justice Sridevan submitted a report to the Madras High Court, in Shamnad Basheer v. Union of India, to appraise the court on the state of the then Search-cum-Selection Committee for appointment of the IPAB Chairperson. In the report she highlighted that the Committee was headed by the Secretary of Dept. of Industrial Policy and Promotion, instead of the serving Chairperson or any other judicial officer. The Madras High Court took note of this (see specifically paras 9.5 and 9.6) and ruled that “such a composition should exhibit the leading role of the judiciary.” With specific directions 1 and 2 above, the court seeks to resolve this discrepancy. The proposed National Tribunal Commission can take care of the administrative and financial needs of the tribunals, and the re-constitution of Search-cum-Selection Committee can strike the right amount of balance between the number of members from judiciary and executive (2+2+1(without the power to vote)). Theoretically speaking, this seems like a decent way out. However, one apparent flaw in this arrangement is that the court has not demarcated between the powers and functioning of the National Tribunal Commission and the Search-cum-Selection Committee. The court seemed to have suggested that the proposed Commission will take care of the appointments to the tribunals, however, in such a situation, one must ask what is the use of the Search-cum-Selection Committee then? Perhaps a little clarification to this regard would have made this arrangement seem more concrete. 

Delayed appointments to the IPAB

The court also took a note of the delayed appointments by the executive to the tribunals. Speaking about the IPAB, Prashant and Pranav have previously highlighted that in its 17 years of existence, the board has not had a Chairperson for a cumulative total of 1,130 days! Balu and Pankhuri too pointed to the undue delay in appointment of the Chairperson here. The directions 3, 4 and 5 above seem to address this. Prior to this decision, a Chairperson (who is a former high court judge) could only serve for 2-3 years post his/ her retirement from the high court at 62 years. With the age of retirement increased to 70 or five years, whichever is earlier, now the Chairperson can serve a few more years. Similarly, the court by fixing a period of three months within which the government must make the appointment, and directing the Search-cum-Selection Committee to make just one suggestion instead of three, has made an attempt to expedite the appointment process. However, one apparent shortcoming of the above direction is that the court has not commented on the time within which the Search-cum-Selection Committee must finalize its nomination. One may argue that this time frame by the committee shall form a part of the discretionary power under Rule 4(2) of the 2020 rules, however, any directive/ suggestion from the court on this would have been appreciated. 

Appoint experts first, then leave it to them 

However, the most significant takeaway from this decision in context of IPAB is the above-mentioned obiter calling for a mix of experts and judicial members in a tribunal. IPAB, owing to its nature, requires assistance from technical members, who are theoretically appointed specifically by the virtue of their past experiences with the relevant subject matter. However, due to frequent and long vacancies in appointment of the technical members and consistently piling of disputes, necessity has forced a technical member to adjudicate on the disputes outside the purview of his expertise. We have previously highlighted how patent matters were heard by the PVPAT technical member (see here and here). In light of the same, this obiter acts as a sweet reminder that merely incorporating an arrangement will not suffice but the same must be backed by timely appointments of the technical members to the tribunals.

With the date of re-retirement of the incumbent IPAB Chairperson approaching and the process for appointment of the new Chairperson already underway (see here), this decision tends to bring some clarification on the ensuing appointment. However will the government act or not, in time this time, is a question worth placing your bets on. 

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